ARIHANT BUILDERS vs UNION OF INDIA

Shivraj V. Patil, CJ.

Heard the learned counsel for the appellant.

In this appeal the appellant is questioning the validity and correctness of the order dated 4-2-1999, passed by the learned Single Judge in S.B. Civil Writ Petition No. 2455 of 1998. The learned Single Judge by the order under appeal dismissed the writ petition taking note of the order made earlier in Writ Petition No. 4472 of 1997 filed by the very appellant.

The learned counsel for the appellant strongly contended that the assessment could not be reopened merely on the basis of the valuation report made by the valuer, of the department; the authority was not right in rejecting the objections raised by the appellant; the order of the learned Single Judge in that writ petition could not be understood as directing the authorities to dispose of the case on merits; according to the learned counsel, the learned Single Judge was not right in passing the order under appeal, rejecting the writ petition merely taking note of the order passed in the earlier writ petition; in the present writ petition the very notice which was challenged in the earlier writ petition, was not called in question; but a subsequent order rejecting the objections raised by the appellant was the subject-matter, of the writ petition. The learned Single Judge besides other observations, dismissed the writ petition mainly on the ground that the appellant had filed the earlier writ petition challenging the show-cause notice for reopening the assessment based on the valuation report.

We have considered the submissions made by the learned counsel for the appellant. The principal ground to challenge the notice in the earlier writ petition was that the authorities did not have jurisdiction to reopen the assessment merely on the basis of the report of the Valuer. Even in the present writ petition before us, the thrust of the argument of the learned counsel is the same, though the subsequent order rejecting the objections is challenged in the writ petition. The earlier writ petition was also filed principally on the ground that the assessment could not be reopened merely on the basis of a report of the Valuer of the department and as such the proceedings could not be continued pursuant to the notice issued u/s 148 of the Income Tax Act, 1961; that contention was not accepted by the learned Judge and, on the other hand, the respondent No. 2 was directed to dispose of the matter expeditiously. The argument of the learned counsel for the appellant that the direction given in the earlier writ petition was only to deal with the objection as to the jurisdiction cannot be accepted from the plain reading of the order. After passing of the order in the earlier writ petition, S.B. Civil Writ Petition No. 4472 of 1997, the appellant raised objections and those objections were rejected by the order dated 22-5-1998 and the main case is still pending before the respondent No. 2. Now again, the appellant is contending that the notice for reopening the assessment could not be issued merely on the basis of the report of the departmental Valuer. If that contention was to be accepted in the earlier writ petition, the learned Judge would have quashed the notice itself and dropped further proceedings. That having not been done, it is not possible now to accept the contention of the learned counsel for the appellant again on the same point. It is open to the appellant to challenge the order of the second respondent that may be finally passed pursuant to the notice issued to reopen the assessment, if'' it becomes necessary, on all the grounds that are available including the grounds raised in the present writ petition. Thus, we find no good or valid ground to admit this appeal. Hence, this appeal is rejected.